The role of participating offenders will be outlined within both panel projects as a whole. Generally, those offenders who participated in the reparation panel process were either initially found guilty of a criminal offence or had admitted their guilt as part of the conventional court process. The presiding judge would then refer that offender to a reparation panel if they agreed to participate in the restorative process. All participating offenders were eighteen years of age or older. All referrals relied on judicial discretion due to the lack of statutory rules. Thus, an offender may be referred to a panel in one courtroom and in one particular area, but be prosecuted in another depending on the presiding judge and their willingness to engage with restorative justice and the reparation process. This aspect of the process represents a major flaw within panel procedure. The mode of referral is something akin to a ‘Russian roulette’ justice model (my emphasis) and has served to weaken notions of a procedurally fair justice system for all. This concern is reinforced within the town based programme when the number of judges ‘on board’ with the reparation process is taken into account. Across that programme’s remit, only four judges were referring cases to reparation panels, with one judge covering Tipperary, one covering Offaly and two judges covering Cork city, although judicial participation was seen to be increasing as part of the city based reparation model due in some part to its increased caseload. However, full awareness of, and experience in, restorative justice principles and practices generally amongst criminal justice practitioners, including judges, remains relatively low.48
47 Carolyn Bowes Watson, ‘The Value of Citizen Participation in Restorative Community Justice: Lessons
from Vermont’ (2004) 3 Criminology and Public Policy 687, 689.
48 Shane McCarthy, ‘Perceptions of Restorative Justice in Ireland: The Challenges of the Way Forward’
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It should be noted that, while this is on its face a voluntary process, an argument could be put forward that offenders are not strictly ‘volunteering’ to participate in the panel process but are in fact being coerced into doing so. Some offenders have stated within panel meetings that they had no idea what restorative justice was or how the reparation panel operated in practice. While caseworkers and facilitators have endeavoured to explain the process at pre-panel meetings, it seems to be the case that offenders are ‘volunteering’ for a process that they know little about, apart from the possibility that an almost certain criminal prosecution might be diverted if the process is successfully completed. Ashworth has noted that it is right to be sceptical of the notion of voluntary consent when focusing on the reasons why offenders become involved in restorative processes, especially when the only alternative is a harsher sentence and an entrance into the formal criminal justice system.49 Walgrave has further added to the debate by
questioning the primary importance of the coercion principle, in that just because a person has voluntarily agreed to participate within a restorative process does not automatically mean that process will prove to be restorative in reality. Further to this, Walgrave argues that only allowing restorative processes to proceed without any coercion element will result in those processes being condemned ‘to the margins of the system’.50 For Hoyle, coercion cannot be seen as a relevant issue when restorative
justice is used as a diversion from prosecution. However, where it is used as part of a court sentence (with an ordered restorative meeting for example) she has further argued that the issue could become more problematic. While ideally there would be no
2011-12 period, referrals were handed down to the RJS model by 13 different judges in courts within Counties Dublin and Wicklow. See The Probation Service, Report on Pilot Expansion of Probation Funded
Adult Restorative Justice Projects (The Probation Service, July 2012) 8. However, as also noted in Chapter
1, from January to November 2014, RJC had managed an approximate total of 105 case referrals, while between 2013 and 2014 the RJS programme managed over approximately 350 referred cases, a significant increase on previous numbers for both programmes. A policy of advertising the reparation programmes and the advantages of the reparation process would help to further increase awareness of panel practice and increase panel referrals whilst also helping to diminish this current ‘Russian roulette’ version of panel referral. This is discussed further within Chapter 6.
49 Andrew Ashworth, ‘Responsibilities, Rights and Restorative Justice’ (2002) 43 British Journal of
Criminology 578, 587).
50 Lode Walgrave, ‘Restorative Justice and the Law: Socio-ethical and Juridical Foundations for a Systemic
Approach’ in Lode Walgrave (ed.), Restorative Justice and the Law (Cullompton: Willan, 2002) 193. Cited in Kerry Clamp. Restorative Justice in Transition (London and New York: Routledge, 2014) 34.
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need to use coercion, Hoyle notes that this practice of coercing offenders to participate in restorative practices can be a legitimate exercise, providing the offender has been judged at minimal risk of re-victimising.51
In this sense, the Irish reparation process works as something of a hybrid model in that an offender can be diverted from prosecution if they successfully complete the panel contract.52 However, diversion is not guaranteed and agreements such as reparation
and apologies to victims may attach as part of a conventional, retributive sentence. This has been the exception to the rule within the town based RJC model. However, within the RJS programme research has illustrated that a quarter of those cases referred had additional sanctions attached.53 It is difficult to criticise a process that, to some extent,
coerces offenders to participate whenever that participation will, for the majority of participants, result in a diversionary outcome which will see the criminal charge struck off the court books or listed under the Probation of Offenders Act 1907. In saying that however, there should be an element of concern around this diversionary method. Some offenders have contended to panel caseworkers that they did not commit the specific offence with which they had been charged in court, and only admitted to it whenever their solicitor informed them that the reparation panel offer was the best available option.54 While it is impossible to verify the truth of such claims, it does
resemble some of the potential dangers of ‘net widening’ which have been mooted by other restorative scholars.55 It has been argued that restorative justice can widen the
51 Chris Cunneen and Carolyn Hoyle, Debating Restorative Justice (Oxford: Hart Publishing, 2010), 58. It
was difficult to personally judge whether or not offenders had been in any way coerced into participating in the reparation process at particular stages of the process. Within the personally observed panel cases, I did not witness any coercion at this particular stage.
52 Diversion can mean cases being struck out of court, more generally the outcome within the RJC model,
or a listing under the Probation of Offenders Act 1907.
53 A Probation Service Pilot Study noted that all of those contract agreements successfully completed
(2011-12) within the RJC panel were struck out of court. Of those successfully completed within the RJS panel process, additional sentences were added in 45 cases (out of 168 cases referred to RJS). These included fines, suspended sentences and community sentences. Of those 45 cases, 19 were referred on to the Probation Service for further intervention. See, The Probation Service, Report on Pilot Expansion of
Probation Funded Adult Restorative Justice Projects (The Probation Service: 2012) 15, 16.
54 Interview with panel caseworker, Dublin, September 11th 2014.
55 See for example, concerns put forward by Young and Goold with regard to restorative conferencing in
the Thames Valley Police area in 1999. Richard Young and Benjamin Goold, ‘Restorative Police
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net of social control by bringing in low level, minor offenders within its procedures who might otherwise have been warned by police or otherwise diverted.56 In the case of the
reparation panel process, this widening of social control could involve a low level offender, or innocent person, being referred, then failing to complete the reparation contract and being given a conviction and adjoining sentence. However, there does appear to be a shift within panel practice of managing more serious offending behaviour, including assaults causing harm.57 This can serve to limit such ‘net widening’
concerns if guilt has been properly decided. The higher tariff of some referred cases has been illustrated by way of Circuit Court referrals of assaults causing harm such as the swelling of a victim’s brain and the referral to the RJS victim offender mediation scheme of a case which involved a guilty plea of negligent manslaughter.58
For those offenders who have agreed to participate, a pre-panel meeting will be arranged by a caseworker (RJS) or manager-facilitator (RJC) in which the reparation panel process will be explained and the offender will be briefed as to the possible panel representatives, type of questions asked and possible reparative tasks that they may be required to undertake. Throughout observed panel meetings, participants were allowed an opportunity to discuss the offending and the possible causes behind such behaviour. All but two of those observed agreed to carry out the reparative tasks within their individual contract agreements at the time of the meeting.59 Generally, within the RJC
126. See also Richard Young, ‘Just Cops Doing Shameful Business? Police-Led Restorative Justice and the Lessons of Research’ in Allison Morris and Gabrielle Maxwell (eds.), Restoring Justice for Juveniles:
Conferences, Mediation and Circles (Oxford: Hart Publishing, 2001). It is argued that some police
conferencing practices included diversion for minor crimes and juvenile offenders which were disproportionally severe and potentially brought juveniles into the criminal justice system who might otherwise have been dealt with more informally.
56 Daniel Van Ness and Karen Heetderks Strong, Restoring Justice (Cincinnati: Anderson Publishing, 2002).
See also S. Levrant, F.T. Cullen, B. Fulton and J.F. Wozniak ‘Reconsidering Restorative Justice: The Corruption of Benevolence Revisited?’ (1999) 45 Crime and Delinquency 3, 7-8.
57 Interview with panel caseworker, Dublin, September 11th 2014. 58 Ibid.
59 One offender agreed to all contract terms except for the writing of an apology. The panel allowed the
contract to be signed despite this refusal. A representative noted that it would be up to the referring judge to decide whether or not the contract could be viewed as being successfully completed despite this refusal to carry out a fundamental contract term. Another offender’s meeting was broken up before a contract could be agreed. The panel were of the opinion that the participant was not remorseful and, in fact, was arguing that he should not have been charged with the offence and disputed much of the case facts. The
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programme contract completion was said to be high. Out of 105 cases managed between January and November 2014, only eight contracts were not completed.60
When the reparative tasks have been completed, the offender would then return for a second panel meeting. This second panel meeting was relevant to the RJS model only and did not occur within RJC procedures due to a lack of resources within that programme.61 The panellists within the second panel would not necessarily be the same
as those that had managed the initial panel case. If all panel representatives were in agreement that the tasks had been successfully completed, then the panel would sign off on the contract along with the offender. It would then be down to the referring judge to decide on the relevant sentence at the next court appearance after examining the contract. The time frame between the first and second panel meetings within the RJS model would vary and will depend on factors such as possible access to rehabilitative courses and backlog of court cases.62 Within the RJC programme, the timescale would
be approximately four months from initial referral to sentence, with judges said to be flexible when arranging adjournments.63